PROPOSAL FOR A COUNCIL REGULATION CONCERNING PUBLIC
ACCESS TO DOCUMENTS OF THE EUROPEAN PARLIAMENT, COUNCIL AND COMMISSION

- DRAFT -

THE COUNCIL OF THE EUROPEAN UNION,

having regard to the Treaties establishing the European Community,
and notably to Article 255,

having regard to the Commission proposal,

having regard to the opinion of the Economic and Social Committee,
(optional)

having regard to the Regional Committee, (optional)

Acting pursuant to the procedure referred to in Article 251
of the Treaty,

Whereas,

The Treaty of Amsterdam enshrines the concept of transparency
in the new first Article of the Treaty on the European union,
paragraph 2, which provides that "This Treaty marks a new
stage in the process of creating an ever closer union among the
peoples of Europe, in which decisions are taken as openly as
possible and as closely as possible to the citizen,"

Whereas,

Transparency allows greater participation by the citizen in
the legislative process and guarantees greater legitimacy, effectiveness
and accountability within the administration vis-à-vis
the citizens in a democratic system, by reducing fraud, corruption
and bad management,

Whereas,

Granting the citizen right of access to documents is a necessary
condition for making this transparency real,

Whereas,

The Treaty on European Union, and the conclusions of the European
Councils of Birmingham, Edinburgh and Copenhagen emphasised the
need to ensure greater transparency in the workings of the institutions
of the Union; and that following these conclusions, the institutions
launched a whole series of initiatives aimed at improving transparency
in the legislative process, in particular through the adoption
of rules on public access to their documents, completing actions
already taken in the area of information and communication,

Whereas,

This new regulation aims to optimise access to documents,

Whereas,

Pursuant to Articles 28(1) and 41(1) of the Treaty on European
Union, the right of access is equally applicable to documents
relating to foreign and security policy and police and judicial
cooperation (Titles V and VI),

Whereas,

Following Declaration 41 on provisions relating to transparency,
access to documents and the combating of fraud, the new legislation
also covers documents existing under the CECA and EURATOM treaties,

Having regard to the Green Book on public sector information
in the information society,

Having regard to the Aarhus Convention
on access to information, public participation and access to
justice in the domain of the environment,

Having regard to the regulation
of the European Parliament and Council on protection of the natural
person as concerns processing of personal data by the institutions
and organs of the European Community, and the free circulation
of this data.

Having regard to the report of
the European Parliament on transparency within the European Union,

Having regard to the special report drawn up by the Mediator
following his enquiry into the rules for public access to documents
held by Community institutions and organs,

Considering it desirable that other Community
institutions, [agencies] and organs should adhere to these principles
and adopt in future comparable provisions governing access to
their documents,

Emphasising that the principles set out below
are a minimum, and can in no case be prejudicial to provisions
applying to access to documents that directly concern persons
with a specific interest in them,

HAS DECIDED:

Article 1: Scope and
definitions

1.1 The present regulation shall be applicable to documents
held by the institution, that is to say, produced by the institution
or by third parties, including member states and other Community
or non-Community organs.

1.2 "Document" is understood as any medium containing
data (written on paper or stored in electronic form, and audio,
visual or audiovisual recordings).

1.3 Only administrative documents, i.e. documents concerning
matters relating to the policies, actions and decisions falling
within the field of competence of the institution, are covered.

1.5 [sic]Partial access will be granted to a document of which
a part is covered by one of the exceptions provided for under
Article 3.

1.6 This regulation does not apply where there are specific
provisions in respect of access to documents constituting the
'lex specialis'.

Article 2:General principle and beneficiaries

All citizens of the Union and all natural or legal persons
resident or having their seat in a Member State have the right
to the broadest possible access to the documents of the European
Parliament, the Council and the Commission, without having to
justify an interest, subject to the exemptions specified under
Article 3.

Article 3: Schedule of
exemptions

The institutions shall refuse
access to documents, the disclosure of which could jeopardise
the protection of:

1. the public interest (public
security, defence and international relations, relations between
and/or with the Member States or Community and non-Community
institutions and bodies, financial or economic interests, monetary
stability, stability of the Community legal order, judicial proceedings,
including any preparatory stages, and actions relating to inspections
and inquiries, infringement procedures);

2. respect for the right to privacy
and of the individual (personal files; information, opinions
and assessments provided on a confidential basis in relation
to appointments or nominations; personal information concerning
a person or a document the disclosure of which could constitute
or facilitate an invasion of privacy, such as data covered by
medical confidentiality);(1)

3. the proper functioning of
the processes of internal consultation, deliberation and decision-making;

4. commercial or industrial secrets
(information, including business confidences, trade secrets or
intellectual property, the unauthorised divulgence of which would
prejudice a third party's competitiveness; industrial, financial,
banking and commercial information, including that concerning
business relations or contracts, information on costs and offers
following the award of contracts);

5. the financial or economic
interests of the Union (e.g., documents that could have an impact
on the monetary situation);

6. exceptions specific to the
following areas: 'Justice and internal affairs' (prevention,
investigation and pursuit of criminal activities), 'Foreign policy
and common security', the combat against fraud (in particular
to protect those who expose fraud or to keep secret operational
details of investigations in progress);

7. confidentiality requested
by the natural or legal person, or required by the legislation
of the Member State which supplied the document or information.
In addition, if the document produced by a member state or another
Community or non-Community institution or organ is classified,
or if the document requested was written by the Community institution
on the basis of classified information emanating from a member
state or another Community or non-Community institution, the
institution may only change this classification if the information
as such is already widely available, and/or if the author authorises
declassification.

Article 4: Treatment
of initial requests

All requests for access to a
document must be formulated in writing and be sent by mail, fax
or electronic medium (e.g., e-mail) and must be sufficiently
precise to allow the institution to identify the document.

Where that is not the case, the
institution concerned shall ask the applicant to state his or
her request in greater detail.

In cases of repeated requests
and/or requests concerning long documents, the institution concerned
shall seek an amicable solution with the applicant in order to
come to an equitable arrangement.

The competent departments of
the institution shall inform the applicant in writing within
a month from the registration of the request of the decision
taken regarding the request.

Where the competent departments
of the institution have given a negative response to the applicant,
based on one of the exemptions provided for under Article 3,
they shall inform the applicant of the possibility open to him
or her of making a renewed request to the institution within
a month of receiving its reply, asking it to reconsider its position.
Should the applicant fail to do so, then the original request
shall be deemed to have been relinquished.

The absence of a response within
the required time limit shall be deemed to be a negative response.

In exceptional cases, the one-month
time limit may be extended by a month, on the basis of information
previously supplied by the applicant, with a detailed justification
for the extension. (For example, if a search for a document is
in progress, or if it is necessary to consult third parties.)

Article 5: Mode of exercising
the right of access

Access to documents may be granted
either by allowing consultation in situ or by supplying a paper
copy of the document or by electronic transmission over the Internet.

The cost of access will be borne
by the applicant, without their exceeding a reasonable sum.

The documents shall be supplied
in the language version available, taking account of any preference
expressed by the applicant.

Article 6: Copyright

The applicant who has obtained
a document shall not reproduce or publish it for commercial purposes
without prior authorisation from the institution.

Article 7: Treatment
of renewed requests and avenues of appeal

Where the applicant submits a
renewed request, the institution concerned shall have a month
from the date of registration of this request to reply to the
applicant in writing. Should it decide to confirm its refusal
to grant access to the document requested, the institution must
duly justify this refusal on the basis of one of the exemptions
provided for under Article 4 and inform the applicant of the
avenues of appeal available, to whit initiating court proceedings
and/or lodging a complaint with the Ombudsman, subject to the
conditions laid down under Articles 230 and 195 of the EC Treaty.

In exceptional cases, this time
limit may be extended by a month upon prior notification by the
applicant, with a detailed justification for the extension.

Article 8: Registers

In order to make it easier for
citizens to exercise their right of access, each institution
shall make available to the public a register of documents.

Final provisions

The present regulation shall
take effect the day after publication in the Official Journal.
Right of access to documents emanating from third parties shall
be limited to documents created after it comes into force.

The European Parliament, the
Council and the Commission will each draw up, as far as it is
concerned and within its internal regulatory regime, measures
necessary for the implementation of these principles, before
the [date]. In particular, they will inform the public of new
provisions in force, and will organise staff training on the
subject. They will also revise their methods of classifying,
accessioning, filing and archiving their documents. In addition,
they will, if necessary, revise specific provisions for access
to documents forming the 'lex specialis', in order to
ensure that they conform with the general principles of transparency.

The present regulation shall
be reviewed after two years of application on the basis of a
report drawn up by the Secretary General of each institution.

Note:

1. Directive 95/46 on the protection of the natural person
regarding processing of personal data.

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